In re Blackinton's Estate

• Decision Date: 01 July 1916
• Citation: 29 Idaho 310,158 P. 492
• Parties: In the Matter of the Estate of EMMETT BLACKINTON, Deceased. v. EDWARD B. UTTER et al., Respondents GRACE A. WOODWARD, Appellant,
• Court: Idaho Supreme Court

158 P. 492

29 Idaho 310

In the Matter of the Estate of EMMETT BLACKINTON, Deceased.

GRACE A. WOODWARD, Appellant, v. EDWARD B. UTTER et al., Respondents

Supreme Court of Idaho

July 1, 1916

ESTATES-PROBATE PRACTICE-ERRORS IN FINAL DECREE OF DISTRIBUTION - APPEALS FROM DECREE IN WHOLE OR IN PART - ADJUDICATION OF TITLE TO REAL PROPERTY - STATUTORY CONSTRUCTION-GRANTS OF HEIR BEFORE FINAL DISTRIBUTION-HEIR'S RIGHT OF ACTION TO CANCEL ANCESTOR'S DEED - UNDERTAKING ON APPEAL FROM PROBATE COURT - SALE OF ESTATE PROPERTY TO ADMINISTRATOR'S WIFE.

1. Where obvious mistakes and inconsistencies appear upon the face of a final decree of distribution in the probate court and such errors are called to the attention of that court by a proper motion to reopen the decree, the motion should be granted and the decree reopened, to the end that the errors may be corrected and the decree as a judicial act conform to the documentary and other evidence upon which it should be based.

2. When two appeals are taken by different heirs from a final decree of distribution in the probate court and such appeals are based upon the same record and are heard together in the district court, that court should adjudicate the whole matter of the settlement of the estate as brought before it on such appeals in one judgment.

3. Under the laws and constitution of this state, the probate court has no jurisdiction to adjudicate questions of title to real property.

4. Under sec. 5634, Rev. Codes, which provides that "Partition or distribution of the real estate may be made as provided in this chapter, although some of the original heirs, legatees, or devisees may have conveyed their shares to other persons, and such shares must be assigned to the person holding the same, in the same manner as they otherwise would have been to such heirs, legatees, or devisees," it is presumed that assignments or conveyances from heirs to persons claiming the right of distribution from the probate court under this section are valid. If the validity of such a conveyance from the heir is disputed by the heir or those claiming under him, the probate court must distribute the property covered by such conveyance to the heirs as if no such conveyance had been made, and the heir's grantee or assignee must seek adjudication of his title to the property in question before the proper tribunal.

5. Where one claiming to be the grantee of an heir asserts a right to distribution from the probate court under sec. 5634 Rev. Codes, and such claimant is neither heir, devisee nor creditor of the estate, he cannot be heard to question the procedure under which distribution of the estate is proposed to be effected.

6. The right to cancel a deed to real property obtained from an ancestor by fraud, duress or undue influence passes to the heirs upon the death of the ancestor, provided the ancestor had not theretofore ratified or acquiesced in the execution of such deed.

7. Sec 4834, Rev. Codes, authorizes an appeal from the whole or "some specific part" of a judgment or order of the probate court.

8. Sec 4933a, Rev. Codes, prescribing a form of undertaking on appeal in civil actions and declaring the legal effect thereof, applies to undertakings on appeal from the probate court.

9. Where an appeal is taken both from a decree and an order denying motion to reopen decree, and both are specifically referred to in the undertaking on appeal, in the form into which the statute imports every condition required by law, and the amount of the penalty is sufficient for both appeals, the legal effect is to comprise two bonds in one instrument, and it must be so construed.

10. Under sec. 5543, Rev. Codes, which provides that "No executor or administrator must, directly or indirectly, purchase any property of the estate he represents, nor must he be interested in any sale," an administrator's wife who receives a deed to property belonging to the estate from an heir before final distribution must show upon adjudication of her title that such deed was intended to convey the property in question to her as her separate property, or the transaction will come under the prohibition of said sec. 5543.

[As to appealable judgments or orders in probate or administration proceedings, see note in Ann.Cas. 1913C, 850]

APPEAL from the District Court of the Second Judicial District for Nez Perce County. Hon. E. C. Steele, Judge.

Appeal from judgments of the district court setting aside decree of final distribution in the probate court. Affirmed.

Judgment of the district court affirmed. Costs awarded in favor of respondents.

Ben F. Tweedy, for Appellant.

Under sec. 5702, Rev. Codes, Ann Blackinton, at the time of her death, must have owned the real estate to which her heirs succeed; the section does not include Ann. Blackinton's personal right to maintain an action in the district court to set aside, vacate and annul her deed to appellant, and does not say that her heirs succeed, upon her death, to this personal right of Ann Blackinton to have her own deed annulled by a decree of court. (Rowland v. Rowland, 2 Sneed (34 Tenn.), 543.)

Though an executed gift of a bond is secured from an heir's ancestor by undue influence, and though the heir's ancestor is of unsound mind, or insane to the extent of being incapacitated to do business, the heir of such ancestor after the death of the ancestor cannot maintain an action to set aside the executed gift. (Bishop v. Leonard, 123 F. 981.)

The right to avoid a deed for duress is personal to vendor. (Schee v. McQuilken, 59 Ind. 269.)

Ann Blackinton had the absolute right to waive all undue influence, all fraud, all duress, and thereupon to ratify and confirm the deed of conveyance; and this right was personal to her. (13 Cyc. 591, 592, subn. 8, and notes.)

The district court can try only questions of law or of fact presented to the probate court, and George and William Blackinton presented no question of fact or of law to the probate court for his decision on final settlement and distribution. (Estate of McVay, 14 Idaho 56, 93 P. 28; Kent v. Dalrymple, 23 Idaho 694, 132 P. 301; In re Christensen's Estate, 15 Idaho 692, 99 P. 829.)

There is only one undertaking on the two appeals contained in the notice of appeal from the December, 1914, decree and the appeal from the February, 1915, order. (Horn v. Volcano Water Co., 18 Cal. 142; Bornheimer v. Baldwin, 38 Cal. 671; In re Kasson's Estate, 135 Cal. 1, 66 P. 871; Centerville etc. Ditch Co. v. Batchold, 109 Cal. 111, 41 P. 813.)

The appeal bond or undertaking does not conform to secs. 4834, 4835, Rev. Codes. (In re Page's Estate (on rehearing), 12 Idaho 410, 86 P. 273.)

The undertaking on the two appeals is indefinite, uncertain and ambiguous, and no court or person can tell whether it is an undertaking on both appeals, or on only one of the appeals, or what appeal it secures or undertakes with reference to. ( Wallace v. McKinley, 6 Idaho 95, 53 P. 104; Kelley v. Leachman, 5 Idaho 521, 51 P. 407; Weil v. Sutter, 4 Idaho 748, 44 P. 555; Schiller v. Small, 4 Idaho 422, 40 P. 53.)

A final settlement and distribution cannot be appeal to the district court be divided into "fragments" and changed into a piecemeal final settlement and distribution. (2 Cyc. 532.)

Sec. 4808, Rev. Codes, authorizes an appeal from "some specific part" of a final judgment or order, but, if in the very nature of things, the final judgment or order cannot be divided, the party aggrieved cannot appeal from a part thereof and have that part reversed and the other part affirmed. (Hampton v. Board of Commrs., 4 Idaho 646, 43 P. 324; 3 Cyc. 220; In re Burdick, 5 Cal. Unrep. 6, 40 P. 35.)

The probate court, in the settlement of the estate of Emmett Blackinton, has exclusive original jurisdiction of the transmission of decedent's title to whomsoever takes it, upon distribution, as legal owner. (In re Burton's Estate, 93 Cal. 459, 29 P. 36; More v. More, 133 Cal. 489, 65 P. 1044; Connolly v. Probate Court, 25 Idaho 35, 136 P. 205; Miller v. Mitcham, 21 Idaho 741, 123 P. 941.)

The decree of distribution is a conclusive adjudication on the transmission of the decedent's title to its legal owner, or to the person entitled to it on distribution of the estate being administered. (Connolly v. Probate Court, supra; Blair v. Hazzard, 158 Cal. 721, 112 P. 298; In re Burton's Estate, supra; More v. More, supra; secs. 5627, 5634, Rev. Codes.)

Property conveyed to another by the decedent constitutes no part of his estate in probate to be partitioned by the probate court. (Freeman on Judgments, 4th ed., p. 551, sec. 308a.)

"A purchase of property of the estate by an executor or administrator at a sale under order of court, while universally considered to be highly improper, is usually held to be merely voidable at the election of the persons interested, and not void; and even statutes providing that such sales are void have been construed to mean simply that they are voidable. It follows that until the sale is actually set aside the legal title remains in the representative." (18 Cyc. 771, subn. C, and note 6.)

The probate court has the jurisdiction to decide that Ann Blackinton's deed to appellant is valid, and therefore that respondents could not inherit appellant's real estate. (In re Walker's Estate, 169 Cal. 400, 146 P. 868; Coats v. Harris, 9 Idaho 458, 75 P. 243; In re Daughaday's Estate, 168 Cal. 63, 141 P. 929; French v. Phelps, 20 Cal.App. 101, 128 P. 772.)

James E. Babb, for Respondent Edward B. Utter.

Appeals cannot be taken in one notice from separate judgments in separate proceedings. (2 Ency. Pl. & Pr., pp. 219, 220; 2 Hayne on New Trial and Appeal (Rev. ed.), p. 1106.)

The objection having been as to the undertaking that it did not...